Monday, October 31, 2016

Former White House ethics lawyer Richard W. Painter
contended in a New York Times opinion piece published Sunday that the FBI
director broke the law with his letter to congress announcing the FBI was
examining new emails related to its probe into Hillary Clinton's
private email server.

Painter argued that FBI Director James Comey violated the Hatch Act, which
ensures "that federal programs are administered in a nonpartisan
fashion," by making "highly unusual public statements about an FBI
investigation concerning a candidate in the election."

Painter said he brought those concerns to the Office of
Special Counsel and the Office of Government Ethics with a a complaint against
the FBI, reported the Business Insider.

"The letter was sent in violation of a longstanding
Justice Department policy of not discussing specifics about pending
investigations with others, including members of Congress," wrote Painter.

He also referred to such a disclosure on the eve of a
general election as an "abuse of power."

Painter served as an ethics lawyer for George W. Bush's
administration from 2005-2007. In the piece Painter discloses that he supported
GOP candidates during the primaries, but eventually pivoted to Hillary Clinton.

The issue of “ballot selfies” has actually become somewhat contentious. At the end of September, a federal appeals court ruled that a statewide ban on ballot selfies in New Hampshire was unconstitutional. Proponents of the ban said it was put in place so that images of ballots wouldn’t be used to buy votes or cause voter intimidation, according to CNN.

Before you post that vote photo or a smiling selfie of you
and your ballot, in some states it might be a crime. One that carries at least the possibility of time behind
bars.

However, while sharing your ballot – whether on social media
or otherwise – is technically illegal, authorities say they won't will be
scouring Twitter for #ballotselfie posts in order to snag scofflaws.

That is, unless there's evidence that the messages have been
coerced or part of a pay-for-vote scheme.

The intent of Ohio's ballot sharing ban, last revised almost
20 years ago, was to prevent voter intimidation, and Tammany Hall-era election
fixing, Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine said.

In Pennsylvania the Election Code doesn’t address electronic devices in
polling places, so the state recommends counties enact “common sense” rules to
address it so that voting is unimpeded.

Counties can allow other people such as poll
watchers who are lawfully in the polling place to use portable
electronic devices, but should consider limiting the location of use to outside
the area where voting occurs.

The state recommends
voters who want to do so do two things:

Make sure you’re only getting your ballot in the
photo and not anyone else’s. This is more of a problem in counties without
voting booth curtains.

The Department recommends voters wait until after they leave
the polling place to post a ballot selfie on social media.

Saturday, October 29, 2016

Voters in Pennsylvania and Oregon will have a chance to
decide how old is too old to be a judge. Pennsylvania seeks to extend the date
of mandatory retirement from age 70 to age 75. Oregon seeks to end mandatory
retirement altogether, much like the federal bench.

According to the National Center for State Courts, 32 states
plus the District of Columbia have a retirement age for judges; most use 70 as
the threshold, and the remaining states use either 72, 74, 75, or in the case
of Vermont, 90.

For nearly 20 years state legislatures across the country
have tried to increase or abolish mandatory retirement for judges, with mixed
results. Since 1990, at least 11 states have tinkered with mandatory judicial
retirement. In fact, the Virginia Legislature had tried unsuccessfully for
seven consecutive years to increase the mandatory retirement age for judges,
until finally succeeding in 2015. Federal judges have no age restrictions. The
Constitution grants federal judges a lifetime appointment as long as they
maintain “good behavior.” Since that language was written in 1787, average life
expectancy has more than doubled, to almost 80, and the number of people who
live beyond 100 is rapidly growing. According to the New York Times, nine of
the 10 oldest practicing federal judges on record have served in the last 15
years.

According to an investigation by ProPublica, as of January
2011, 12 percent of federal judges were over age 80 — that is about 150 judges
— and 11 judges were over the age of 90. Should there be concern about judges
serving into their 70’s and 80’s? According to one study, by age 70 most people
are cognitively impaired and half of all 85-years-olds have dementia. As I have
written here in the past, the cognitive functions most affected by age are
attention, memory, language processing and decision making — fundamental skills
in any courtroom. Federal judges are nominated by the president. Most state
judges are elected. State judges campaigned for office knowing their terms were
limited by mandatory retirement. Now they want to change the rules, a process
that is often cumbersome and may include amending the state’s constitution.
Pennsylvania is one of those states.

According to Stateline Magazine, the only way to change the
retirement age of judges in Pennsylvania is to change the constitution. A
change in the state constitution requires that an identical bill pass both
chambers of the Legislature two sessions in a row. The measure must then win a
popular vote in a statewide election.

States that require constitutional amendments to change
retirement ages for judges have appeared on ballots 11 times in 9 states since
1995 and almost all have failed, including Arizona in 2012; Louisiana in 1995
and 2014; Hawaii in 2006 and 2014; New York in 2013; and Ohio in 2011,
according to the National Center for State Courts.

To further complicate things, the language on Pennsylvania’s
ballot is misleading. The ballot question asks voters whether they would
approve mandatory retirement for judges at the age of 75. The question does not
make it clear that the mandatory retirement age in Pennsylvania is currently 70
and that voters are being asked to extend retirement by five years to 75.

An unsuccessful lawsuit attacking the language alleged,
according to the Philadelphia Inquirer, “The ballot question … is misleadingly
designed to garner `yes’ votes from voters who are actually in favor of
restricting the terms of judges and justices, but are unaware that the proposed
amendment will have the opposite effect.”

Voters in Pennsylvania also face a curious dilemma on
Election Day. On one portion of the ballot votes are being asked if 70 is too
old to be a judge and on another portion of the ballot voters are being asked
to choose between two major party candidates for president, one age 70 and the
other 69.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him at mattmangino.com and
follow him on Twitter at @MatthewTMangino.

Friday, October 28, 2016

Sixty-eight inmates in Wisconsin are serving life sentences
for crimes they committed at age 16 or younger, reported the Milwaukee Journal Sentinel. In Wisconsin, juveniles as
young as 10 are automatically charged as adults when accused of first-degree
murder. While judges can move cases to juvenile court where sentences are
shorter and resources for rehabilitation are more widely available, they rarely
do.

In 2012, the U.S. Supreme Court banned mandatory life sentences without parole for juveniles,
noting such sentences fail to consider dysfunctional upbringings or peer
pressure that may have contributed to the crimes. Earlier this year, the court said its ruling should be applied retroactively,
giving 2,000 inmates across the country the chance to be resentenced or get out
of prison early.

Since the Supreme Court rulings, 19 states have outlawed life without parole for juveniles.

But there is little chance the rulings will make a
difference for the 68 juvenile offenders serving life terms in Wisconsin. Since
most will technically be eligible for parole, the Supreme Court decisions won’t
trigger a review of their sentences. And because parole is rarely granted in
Wisconsin, release is unlikely.

Advocates for reform say treating young offenders as adults
and subjecting them to life sentences ignores the growing scientific and judicial consensus: Juvenile brains
aren’t fully formed and young people are more capable of rehabilitation than
adults.

Thursday, October 27, 2016

Ballot campaigns fighting to halt the death penalty are
getting unlikely support from some Republicans, who cite a growing
concern that it has become a costly and ineffective policy, the Wall
Street Journal reports. Voters in Nebraska and California will decide Nov.
8 whether to abolish the death penalty, while Oklahomans will vote on
a measure that would give the state more leeway in the methods used to kill
death-row inmates.
The Pew Research Center said this year that 72 percent of Republicans favor the death penalty, down from 77 percent in 2015 and 87 percent in 1996. Some 34 percent of Democrats support the death penalty, down from 40 percent last year.

“Republicans are starting to take the lead on this
issue, they’re starting to say we’re going to use our conservative principles
and get rid of this,” said Colby Coash, a Nebraska Republican state senator.
“Here’s a broken government program, if you want to fix broken government
programs.” Coash rallied the Republican-majority state Legislature to ban
the death penalty last year.
His opponents argue voters won’t be so easily convinced. “They’re out of
touch with the views of their constituents,” said Donald Stenberg,
Nebraska’s GOP state treasurer who was attorney general in 1997 when the state
last executed a death-row inmate. Nationally, support for the death
penalty is still far stronger among Republicans than Democrats, but it is
waning.

In Oklahoma, where executions are on hold after a
botched execution and multiple drug mix-ups, independent pollsters were
surprised by the amount of Republican support for abolishing the death penalty
when there is an alternative punishment for murderers. Nearly half of
Republicans said in a survey they would support its abolition if murderers were
instead given life without parole and forced to pay restitution.

Wednesday, October 26, 2016

Fresno, California prosecutor Nicole Galstan asked a judge to
sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter
over a four-year period, ending in 2013, reported The Fresno Bee.

Judge Edward Sarkisian Jr. agreed, sentencing the
41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court
history. It stands in stark contrast to recent high-profile sentencings in
sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and,
just this week, 60 days for a Montana man convicted of felony
incest for raping his 12-year-old daughter.

In announcing the punishment, Sarkisian told Lopez he
violated a position of trust, engaged in violent conduct and is a “serious
danger to society.” Sarkisian also noted that Lopez had never shown remorse and
has blamed his daughter for his predicament.

Lopez, who sat shackled in the courtroom, sat silently,
never acknowledging his daughter, who told Sarkisian that she feared her
father. (The Fresno Bee does not name victims of sexual abuse.)

“When my father abused me, I was young. I had no power, no
voice. I was defenseless,” said the daughter, who now is 23 years old. She also
told the judge that her father never has shown remorse for her pain and
suffering.

She then thanked Galstan and senior investigator Stacy
Cordero for helping her overcome her ordeal and giving her justice.

Tuesday, October 25, 2016

Americans' views of how the criminal justice system is
handling crime have shifted considerably over the past decade, according to Gallup. Currently, 45%
say the justice system is "not tough enough" -- down from 65% in 2003
and even higher majorities before then. Americans are now more likely than they
have been in three prior polls to describe the justice system's approach as
"about right" (35%) or "too tough" (14%).

Americans' views
of how the criminal justice system is handling crime have shifted considerably
over the past decade. Currently, 45% say the justice system is "not tough
enough" -- down from 65% in 2003 and even higher majorities before then. Americans
are now more likely than they have been in three prior polls to describe the
justice system's approach as "about right" (35%) or "too
tough" (14%).

Incarceration rates in the U.S. have soared over the past
few decades, and political leaders, justice officials and reform advocates have
sought criminal justice reform as a result. With this, Americans' views of the
criminal justice system have shifted with the national conversation, with less
than a majority now saying the system is "not tough enough." Although
considerably higher than in the past, relatively few believe the system is
"too tough."

Views of the justice system's toughness vary across racial
and political party lines. The majority of Republicans and Republican-leaning
independents say it is "not tough enough" (65%), with most of the
rest describing it as "about right" (30%). Democrats and
Democratic-leaning independents, on the other hand, are most likely to say the
system is "about right" (42%), with the rest dividing about evenly
between saying it is "too tough" (22%) or "not tough
enough" (29%).

A majority of whites (53%) say the system's handling of
crime is "not tough enough," while a third (32%) say it is
"about right." One in 10 whites say the system is "too
tough." Nonwhites -- who as a group make up a disproportionate percentage
of the U.S. incarcerated population -- are more than twice as likely as whites
to say the system is "too tough" (23%). They are also more likely
than whites to say it is "about right" (40%). Meanwhile, 30% of
nonwhites say the system's handling of crime is "not tough enough."

Monday, October 24, 2016

In the last two years, from Chicago to St. Louis to Santa
Fe, N.M., voters have unseated district attorneys, or beaten an incumbent’s
chosen successor, in more than a dozen counties, reported The Marshall Project. Those are small numbers
compared with the roughly 2,500 elected prosecutors in the U.S., but they still
signal a shift. “It’d be hard to find a set of a dozen races like this in the
early 2000s or 1990s,” says Stanford law professor David Sklansky.

These contests — which have centered around race,
sentencing, the treatment of juveniles, and the death penalty — reflect a
growing awareness among reformers that with bipartisan efforts to reduce prison
populations stalled
in Congress (and inconsistent in
state legislatures), local elections are a place to push for change. “People
are scrutinizing their local criminal justice systems, and people are realizing
how much power state attorneys have, and they are seeing elections as a way to
change those results,” says Deborrah Brodsky, director of the Project on
Accountable Justice at Florida State University. In other words, criminal
justice reform is targeting the system’s entry point.

Many of the upsets came in primaries, but a few counties are
in the midst of general election battles. In Harris County, Texas, Republican
incumbent Devon Anderson is sparring with Democratic challenger Kim Ogg, who
has the backing of the Houston
Chronicle and the local Black Lives Matter movement, over bail and the handling
of marijuana cases. In the Denver suburbs, Republican incumbent Pete Weir
is talking up his record of promoting mental
health and veterans courts, while his Democratic challenger, Jake Lilly,
tries to tag him as “old-fashioned.”

Ogg and Lilly's campaigns received
support from political action committees linked to billionaire George
Soros, who in the past two years has added to his broad support of justice
reform by financing prosecutor candidates who promise treatment for drug
offenders and the reduction of racial disparities in sentencing. (A Soros
representative declined to comment; the donations were first reported by Politico.)

In Tampa, the county seat of Hillsborough County, District
Attorney Mark Ober’s opponent is Andrew Warren, a Democrat who focused on white
collar crimes at the Department of Justice and moved to the area several years
ago. He says he decided to run against Ober, a Republican, after hearing about gang
violencein the city. He argues that Ober’s aggressive prosecution of
low-level drug crimes has taken resources away from attacking violent crime.
“We have been so focused on the one goal, retribution and punishment,” he says,
“that we have lost sight of the other goals: reducing recidivism,
rehabilitation, and victims’ rights.” He wants to establish a unit to uncover
wrongful convictions.

When they debated at a civic
club luncheon last month, Warren spun Ober’s long tenure into a liability,
calling his approach overly punitive and outdated — “the rotary phone of
criminal justice.” He said Ober has sent too many youth — and too many
African-Americans — to prison with long sentences, and utilizes the death
penalty too often. Ober fired back that he makes appropriate decisions in
individual cases, and that Warren, who has only lived in the area for several
years, is an “outsider” without an understanding of what the community wants.

Warren has brought up a case in which a 27-year-old man in
Washington, D.C., had sexually assaulted a 15-year-old girl from the county
after meeting her online. Ober had initially declined to charge the man, but
then later did so after a Tampa news station aired a segment on the case. At
the debate, Ober said the case was more complex than his challenger had made it
out to be, and that the victim “was with [the defendant] voluntarily...She flew
to see him.”

How much voters have been swayed by Ober’s comments on the
rape victim will not be clear until Election Day, but it illustrates the
tendency of individual, controversial cases to dominate such races. This can
lead to accusations that prosecutors are putting political interests above the
just result in a case. In Baltimore, after the death of Freddie Gray in the
back of a police van led to street protests, the state’s attorney, Marilyn
Mosby, wasaccused of
obtaining indictments against the police officers involved only to assuage
protesters. Months later, her office’s failure to convict those officers was
described by the Baltimore
Sun as a vulnerability should she run for reelection in 2018.

This tension is unique to the U.S., the only
country in the world that elects prosecutors. At the lunch debate in
Tampa, and in ensuing news coverage, both Ober and Warren promised to be
apolitical in their decision-making, while at the same time defending against
political attacks on how they had handled individual cases.

Sklansky, the Stanford professor, agrees that there is
“something uncomfortable” about how individual cases can drive an election
campaign, and that this underscores the need to find better ways to measure how
prosecutors do their jobs, including more data on charging and convictions. But
overall he sees the current competitiveness as a sign that people are paying
attention to how the criminal justice system works. “There was a long period
where it seemed like there was a rigid logic to the politics of criminal
justice, which led to ever-harsher sentences,” he says. “That logic no longer
holds.”

Sunday, October 23, 2016

A bill introduced recently in Congress, would make
the death penalty a possibility for those who sell heroin with fentanyl in it, reported The Star-Gazette.
The bill is a draconian response to a complicated issue, and will serve only to
make the current crisis worse.

The irony of the bill’s name, the HELP Act, is that
those in need of help because of overdoses will be less likely to receive it if
such legislation is passed. Currently, 37 states and Washington, D.C., have
Good Samaritan laws. These laws give immunity from arrest to those who call 911
when a fellow drug user has overdosed. Replacing immunity with the prospect of
the death penalty will mean drug users will no longer call emergency services
when there is an overdose, thus increasing the number of fatalities. Only drug
users will be hurt by this legislation.

Many involved in selling drugs at the street level
are also users who have no involvement in actually making the drug; they’re
simply the middleman. Fentanyl is introduced into the U.S. supply long before
street-level sellers touch it. Giving the death penalty to street-level sellers
for fentanyl is severely misguided, and will have no impact on the drug trade.

Saturday, October 22, 2016

Recently, Georgia executed Gregory Lawler. When he
was pronounced dead at 11:49 p.m. on Oct. 19, he was the 17th person executed
in the United States this year. Texas and Georgia are responsible for 14 of
those executions.

By year’s end, 2016 will have the fewest number of
executions in a quarter century. Public support for the death penalty is at its
lowest point since the U.S. Supreme Court suspended capital punishment in 1972.
A Pew Research poll published last month revealed that only 49 percent of
Americans now favor execution as an appropriate form of punishment.

The death penalty is largely symbolic. Most states
that have the death penalty don’t execute those condemned. A handful of states
carry out executions and a very small minority do so on a regular basis.

Lincoln Caplan recently wrote about the decline of
the death penalty in Harvard Magazine. Citing the various works of professors
Jordan and Carol Steiker, including the siblings’ recent book “Courting Death:
The Supreme Court and Capital Punishment,” Caplan explains the difference
between symbolic states and executing states.

Pennsylvania is a symbolic state: It has executed
only three people since 1976, and each was a volunteer — they chose not to
continue their appeals. On the other hand, Texas is an executing state.
Officials there have executed 537 people since 1976.

But, ironically, the rate of death-sentencing in
Philadelphia, Pennsylvania, is higher than in Harris County, Texas, which has
had more defendants executed than any other county in the country.

Caplan further writes that 8,124 people had been
sentenced to death between 1977 and 2013. Only 17 percent of those condemned
were executed. Six percent died by causes other than execution and 40 percent
received other dispositions, including reversals of their convictions. The rest
— 37 percent — were in prison. In California in 2014, a federal judge found
that, of the 748 inmates then on death row, more than 40 percent had been there
for more than 20 years.

In fact, Supreme Court Justice Stephen G. Breyer
wrote a 2015 dissent — joined by Justice Ruth Bader Ginsburg — in Glossip v.
Gross that it was “highly likely that the death penalty violates the

Eighth
Amendment,” the constitutional ban against cruel and unusual punishment.

The stage has been set for a dramatic confrontation
with state-sponsored death. Capital punishment will be tested on Election Day
in three states. The outcomes of those ballot measures will no doubt have an
impact on the future of the death penalty.

In Nebraska, the issue pits the Republican governor
against a bipartisan majority in the legislature. A coalition of lawmakers last
year repealed the death penalty with the rallying cry of cost and the claim
that the death penalty is not a deterrent. The governor is now strongly
supporting a ballot measure where voters will be asked to reinstate capital
punishment.

In Oklahoma, ardent supporters of the death penalty
hope to protect it through a ballot initiative. The state has a long history of
capital punishment and not all of it positive. The state has had several highly
publicized botched executions and Justice Breyer’s stunning dissent came in an
Oklahoma case.

Oklahoma has not carried out an execution in 2016,
and last fall 52 percent of Oklahomans said in a News 9 poll that they support
life-without-parole as an alternative to execution. State Ballot Question 776
appears to be the effort of legislators to prevent what happened in Nebraska
from happening in Oklahoma.

Finally, California voters will face two competing
initiatives on Election Day. Proponents of Proposition 62 say the state has
spent $5 billion maintaining the legal and physical apparatus of capital
punishment while executing only 13 people in 38 years.

Advocates for Proposition 66 want to “mend, not end”
capital punishment by changing appellate rules to expedite capital cases,
reduce the costs of the death penalty and the size of death row.

To paraphrase a famous English statesman, this may
not be the end of the death penalty — may be the beginning of the end — but
surely the end of the inevitability of the death penalty.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was
recently released by McFarland Publishing. You can reach him atmattmangino.com and
follow him on Twitter at @MatthewTMangino.

Lawler was pronounced dead at 11:49 p.m. at the Georgia Diagnostic and Classification Prison near Jackson, where the
state’s death chamber is located.

The United States Supreme Court denied a stay of
execution shortly after 11 p.m., clearing the way for Lawler to get a needle
filled with a fatal dose of the sedative pentobarbital.

The lethal injection had been slated for 7 p.m., but
executions are routinely delayed by last-gasp legal appeals. The Georgia
Supreme Court announced Wednesday evening that it had denied late defense
requests to halt the execution. And the state Board of Pardons and Paroles rejected a
clemency request Tuesday that focused on Lawler’s recently diagnosed autism.

Sowa and Cocciolone were sent to investigate a
report of a man hitting a woman behind a business near the intersection of
Lindbergh Drive and Piedmont Avenue. They found Lawler trying to pull his
girlfriend, Donna Rodgers, who was drunk, to her feet. After Lawler walked
away, Sowa and Cocciolone drove Rodgers home.

Both were wearing bullet-proof vests. Their guns
were still holstered.

Lawler spent much of the day Wednesday visiting his
brother, Gerald, at the Georgia Diagnostic and Classification Prison near Jackson.
At 3 p.m. he was given a physical and was then served his last meal — a rib-eye steak, a baked potato with
sour cream, asparagus, dinner rolls with butter, French onion soup,
strawberries, pistachio ice cream and apple juice. Prison officials said he ate
all of it.

Thursday, October 20, 2016

Data released by the FBI shows that 2015
was one of the safest years for U.S. law enforcement in recorded history, reported the Huffington Post.

The FBI’s preliminary statistics, part of a larger
Uniform Crime Reporting release coming in the fall, indicate that 41 police
officers were intentionally killed in the U.S. while in the line of duty in
2015. Every officer death is tragic, of course, but this number marks a
decrease of nearly 20 percent compared to the 51 law enforcement officers
killed in 2014.

Of the officers intentionally killed in the line of
duty last year, all but three were shot by a suspect, according to the FBI
data. The rest were deliberately struck by a vehicle.

The data contrasts with the claims from some conservative media outlets andpolice union bosses who have continued to peddle the
narrative that officers areunder siege. The past two years have seen a surge in police
reform activism in the wake of Michael Brown’s death in Ferguson, Missouri, and
other high-profile instances of police killing civilians. But critics of this
movement allege that groups like Black Lives Matter promote violence against
officers, and have helped wage a “war on cops.”

That misinformation may have contributed to a skewed public
perception of the issue. In a 2015 Rasmussen poll, 58 percent of voters said they believed there was a
“war on police” in the United States.

But the FBI’s data has repeatedly contradicted these
claims.

“Any felonious death of a police officer is a
tragedy, but the data show that the police officers’ job is not becoming more
deadly,” David Harris, a professor of law at University of Pittsburgh School of
Law who studies policing, told The Huffington Post.

“The FBI statistics on police officer felonious
deaths show that belief that the job is growing more dangerous, because of
protests against police or because of the demand for reform to police
practices, is simply wrong,” Harris wrote in an email. “Belief to the contrary
may be sincere, but it has no basis in fact.”

An average of 64 law enforcement officers have been
feloniously killed each year since 1980, according to FBI data. In each of the
past three years, the number of fatal attacks on police has been below average.
2013 saw a historic low, and 2015 is now tied with 2008 for the second-lowest
total in recent history.

Widening the historical scope, though, it becomes
clearer that policing is most likely not as dangerous now as it used to
be. Compare current numbers to the 1970s, when gun-related police deaths
were about six times higher than they are today. Or
consider the Prohibition era, which saw police deaths involving
firearms at rates 14 to 17 times higher than the present day.

Wednesday, October 19, 2016

For the next 30 days my book examining the death
penalty, The Executioner’s Toll, 2010
will be available at nearly 40% off the cover price. If you act now you can buy The Executioner’s Toll, 2010 for $25.00
plus S&H.

The book would be an ideal gift for those interested
in the workings of the criminal justice system or those "ID Addicts" hooked on an
inside look at crime and punishment.
Ordering the The Executioner’s
Toll, 2010 is simple:

The Philadelphia District Attorney's Office has
conceded that a judge resentencing "juvenile lifers" may impose a
minimum sentence lower than the 35 years that the office has been offering in
such cases.

The possibility was raised as the office
agreed to move ahead with resentencing for Kempis Songster, 44, who is serving
life without parole for a murder he committed in 1987 at age 15.

An openly frustrated U.S. District Judge Timothy J.
Savage--who ordered a new sentence for Songster four years ago, and again in
August with a 120-day deadline--said the office's policy of offering all
inmates the same deal for a new sentence was inconsistent with a U.S. Supreme
Court ruling that put back into play about 300 murder cases in Philadelphia
involving juveniles.

Savage's Aug. 17 order had urged resentencings in
which a judge would have discretion to impose "individualized,
proportionate sentences," take into consideration an inmate's
rehabilitation, and impose a maximum of life only in "the rarest of
permanently incorrigible" cases.

"Here's the problem that I have," Savage
told Assistant District Attorney Susan Affronti. "If you're
saying you have all these offers out, it seems you're treating all of these
folks the same way - 35 years to life. I don't get that. That to me appears to
show a lack of due diligence, of looking at each case individually. I
understand you want to do this for policy reasons. Maybe because it looks
good."

Songster's case and others are back in the courts as
a consequence of Montgomery v. Louisiana, a U.S. Supreme Court decision in
January that made retroactive the court's ban on automatic life-without-parole
sentences for juveniles. The ruling affects about 2,300 cases nationwide, about
500 of which are in Pennsylvania - including about 300 in Philadelphia.

Tuesday, October 18, 2016

The president of America’s largest police
organization issued a formal apology to the nation’s minority
population “for the actions of the past and the role that our profession has
played in society’s historical mistreatment of communities of color,” reported the Washington Post.

Terrence M. Cunningham, the chief of police in
Wellesley, Mass., delivered his remarks at the convention in San Diego of the
International Association of Chiefs of Police, whose membership includes 23,000
police officials in the United States. The statement was issued on behalf of
the IACP, and comes as police executives continue to grapple with tense
relationships between officers and minority groups in the wake of high-profile
civilian deaths in New York, South Carolina, Minnesota and elsewhere, the sometimes
violent citizen protests which have ensued as well as the ambush killings of
officers in Dallas and Baton Rouge.

Police chiefs have long recognized the need to
maintain good relations with their communities, of all races, and not allow an
us-versus-them mentality to take root, either in their rank-and-file officer
corps or in the neighborhoods where their citizens live. Cunningham’s comments
are an acknowledgement of police departments’ past role in exacerbating
tensions and a way to move forward and improve community relations nationwide.
Two top civil rights groups commended Cunningham for taking an
important first step in acknowledging the problem.

Monday, October 17, 2016

Two new books on the death penalty predict the end
of capital punishment in the United States, wrote Stephen Rohde in the Los Angele Review of Books.

In Courting
Death: The Supreme Court and Capital Punishment, Carol S. Steiker, Henry J.
Friendly Professor of Law at Harvard Law School, and her brother, Jordan M.
Steiker, Judge Robert M. Parker Endowed Chair in Law at the University of Texas
School of Law, provide a clear and comprehensive look at the 40-year modern
history of capital punishment in the United States since its reinstatement in
1976. Their blunt conclusion is that the Supreme Court “has regulated the death
penalty to death” and that “for the first time since the late 1960s, nationwide
abolition seems achievable in the foreseeable future.”

In Supreme Court history, a few dissenting opinions
have eventually won over a majority of the court. With the death of Justice
Scalia, Justice Stephen Breyer’s powerful dissenting opinion on the death
penalty in Glossip v. Gross (2015) — joined by Justice Ruth Bader Ginsburg —
may become one of those cases. In his dissent, Justice Breyer presents
compelling reasons why capital punishment violates the Eighth Amendment’s
prohibition on “cruel and unusual punishment.” Depending on the court’s makeup
after the 2016 election, Breyer’s dissent could become the law of the land.

This potentially historic dissent serves as the
focus of John D. Bessler’s short and insightful book, Against the Death Penalty. A law professor at the University of
Baltimore School of Law and adjunct professor at the Georgetown University Law
Center, Bessler provides a comprehensive 70-page introduction, briefly tracing
the evolution of capital punishment over the last 250 years, in addition to including
the full text of Breyer’s dissent. It is a timely and well-informed work that
makes a convincing case for abolishing state killing.

Together, these two books serve as an ideal graduate
course in one of the most contentious issues in American life. Courting
Deathprovides an excellent survey of the history of capital punishment and the
prospects of abolition, while Against the Death Penaltyzeroes in on the
analysis of a single Justice (two, counting Justice Ginsberg), which could
chart the legal roadmap to ending this irreversible form of criminal
punishment.

Examining the fatal flaws in the capital punishment
system could not be more timely. On November 8, 2016, the voters of California
will decide the outcome of Proposition 62, which would replace the death
penalty with life in prison without the possibility of parole, and according to
the independent Legislative Analyst, save the state $150,000 annually. In 2012,
a similar ballot measure lost by only four percent.

With almost 750 human beings on California’s death
row (the largest in the United States, with 25 percent of all people waiting to
be executed in the US), repealing the death penalty by a vote of the people
would not only save those lives (and those of untold men and women in the
future), but would also help establish the “national consensus” to achieve a
Supreme Court ruling declaring the death penalty unconstitutional nationwide.

Sunday, October 16, 2016

When it comes to implementing reforms designed to
guard against convicting innocent people, Pennsylvania lags far behind the vast
majority of states, reported Slate. It has no law requiring the police to record interviews
with suspects to prevent coerced confessions. Nor does it have a law setting
guidelines for police to follow when conducting eyewitness identifications.

Another frequent cause of wrongful convictions is
bad lawyering by defense attorneys. You get what you pay for when it comes to
legal services, and Pennsylvania pays nothing at all—standing alone among the
50 states in its steadfast refusal to allocate any money in the state budget
for indigent criminal defense.

Instead, it is up to each Pennsylvania county to
design a system to provide legal representation to the poor. Not surprisingly,
the performance is uneven: Philadelphia’s public defender office, set up as a
nonprofit, is known for its well-trained and diligent attorneys. In other
parts of the state, there is no public defender at all. Instead, judges appoint
lawyers on an ad hoc basis, often at hourly compensation rates that are
shockingly low.

According to Marc Bookman, who directs the
Philadelphia-based Atlantic Center for Capital Representation, many of these
court-appointed lawyers are poorly trained and show up to trial completely
unprepared. More than 250 death penalty verdicts have been thrown out in
Pennsylvania since 1979, the majority because of faulty representation by
defense counsel. It is, Bookman says, “a bigger reversal rate than any state in
the country.” Six of Pennsylvania’s 54 exonerees were death row inmates.

You get what you pay for when it comes to legal
services, and Pennsylvania pays nothing at all.

In 2011, Bookman filed a petition for a writ of
mandamus—an extraordinary remedy sought in instances of “immediate public
importance”—in the Pennsylvania Supreme Court. He sought to have the
compensation rates for court-appointed lawyers in Philadelphia County capital
cases declared unconstitutional. (Bookman targeted only solo practitioners, not
the Philadelphia public defender, which began accepting a small number of
capital cases in 1993 and had never had a client sentenced to death.) Capped at
$2,000 to investigate and prepare the case pretrial and at $400 per day at
trial, the rates were the lowest in the nation by several standards of
deviation. Bookman noted that the Florida Supreme Court had ruled that a
significantly higher flat fee of $3,500 was unconstitutional in 1986. (Wright’s
court-appointed trial lawyer, who was later disciplined by the bar for his
shoddy work in other cases, was paid a total of $1,800.)

“Of course, some jurisdiction has to be last,”
Bookman wrote, “and had the Philadelphia County fee schedule been even close to
the second lowest jurisdiction, this petition would not have been filed. But
Philadelphia County is not close.” In fact, the county of Philadelphia lagged
well behind far poorer counties in places such as Mississippi, Arkansas, and
South Carolina. Bookman’s legal theory was novel but grounded in common sense:
No competent lawyer would take a death penalty case for so little money.

As the Pennsylvania Supreme Court was weighing the
case, Philadelphia County raised the cap for pretrial preparation in capital
cases to $10,000, which, according to Bookman, was still “absurdly low” given
the amount of work involved and the hourly rates provided in other states.
Bookman pressed on with his lawsuit. In 2014, he lost, in a 4–3 ruling by
Pennsylvania Supreme Court. One of the dissenters lamented the lost opportunity
to “address a systemic challenge amidst much evidence that Pennsylvania’s
capital punishment regime is in disrepair.” He called Philadelphia’s fee
reforms “modest.”

A recent study conducted by the Reading Eagle suggests
that the past and current fee schedules in Pennsylvania dissuade all but the
most incompetent and compromised defense lawyers from taking capital cases. The
paper examined 312 capital cases dating back to 1980. The results concluded
that almost 1 in 5 of the defendants were “appointed attorneys with drug and
alcohol addictions, who suffered from depression, have had a history of
mishandling clients’ cases or were convicted felons.” The fact that the
attorneys had faced professional discipline—often multiple times—did nothing to
stop judges from appointing them. More than 80 percent of the defendants they
represented were either black or Latino.

Saturday, October 15, 2016

Matthew T. ManginoGateHouse MediaOctober 14, 2016The outcome of the presidential election on Nov. 8
will likely have an impact on the United States Supreme Court for decades. The
death of Antonin Scalia leaves the court equally divided on ideological lines.
Two justices, Ruth Bader Ginsburg and Anthony Kennedy are 83 and 80,
respectively.

Judicial appointments ought to have emerged as a
leading campaign issue. The next president, through the nomination process, can
have a huge impact on campaign financing, abortion, health care and the future
of criminal justice reform. Yet the nomination of justices has generated little
interest, even though voters have had a firsthand look at the potential battles
on the horizon  the GOP senates refusal to move on President Obamas nomination
of Merrick B. Garland to replace Scalia.

It is not that voters are only ignoring the
importance and impact of the high court, this campaign has turned on its head
everything we’ve come to expect in a race for the White House. Fifty years ago,
Richard Nixon was maligned by the media for perspiring during his debate with
John F. Kennedy. George H.W. Bush was ridiculed for looking at his watch and Al
Gore was slammed for rolling his eyes when his opponent George W. Bush tried to
make a point.

Flash forward to Sunday night, Donald Trump turned
his back to the camera; stalked his opponent around the debate stage; and went
so far as to call Hillary Clinton the devil and threatened, as president, to
put her in jail.

Politics has, at times, over the centuries been
rough and tumble. Lest we forget, Vice-President Aaron Burr murdered former
Secretary of the Treasury Alexander Hamilton; Riots marred the 1896 election
between William McKinley and William Jennings Bryan and the 1968 race between
Richard Nixon and Hubert Humphrey; not to mention Andrew Johnson’s impeachment
after the Civil War; Nixon’s resignation and Bill Clinton’s impeachment and
senate trial.

Setting aside the fact that Trump’s threat to
investigate Clinton, if elected, is the stuff of dictators and despots; can he
really order his attorney general to investigate Clinton? Well if his AG is
Chris Christie probably, anyone else unlikely.

As a result of Watergate, Congress passed the Ethics
in Government Act (EGA) which for the first time defined procedures for the
appointment of a special prosecutor. Specifically, the Act provides that upon
receiving allegations relating to specifically enumerated officials, the AG is
required to conduct a preliminary investigation. If the preliminary
investigation suggested that further investigation is warranted, the AG is
required to petition a three-judge panel established by the statute known as
the Special Division, to appoint an independent counsel.

According to the Washington Post, the EGA came about
as a result of Nixon’s Saturday Night Massacre. In 1973, Nixon fired Watergate
Special Prosecutor Archibald Cox. Attorney General Elliot L. Richardson and
Deputy Attorney General William D. Ruckelshaus resigned after refusing to fire
Cox. Finally, the solicitor general, and later Supreme Court nominee, Robert
Bork fired Cox. Nixon abolished the office of the special prosecutor and
Congress passed the EGA.

Like Nixon, Trump touts himself as the “law and
order” candidate. The unprecedented threat to jail his opponent, his scurrilous
boast of sexually assaulting women and his vow to take this campaign to even
lower depths will do nothing to advance either law or order.

Trump, so fond of invoking the plight of the inner
city when talking about crime and race, would do well to acknowledge that this
campaign has done for politics in America what crack-cocaine did for the inner
city.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book, The Executioner’s Toll, 2010, was
recently released by McFarland Publishing. You can reach him at mattmangino.com and
follow him on Twitter at @MatthewTMangino.

Friday, October 14, 2016

Promising information that is more standardized and
complete than has previously been available, Attorney General Loretta Lynch
says the Department of Justice will collect data on the police use of deadly
force in the line of duty, reported NPR.

So far in 2016, the Post reports that law
enforcement officers have killed 754 people. A lack of a national database
became a sticking point in recent years, particularly after a string of
high-profile cases in which unarmed black men died at the hands of police.
Attempts to fill that void have included the website Fatal Encounters, as well as a Washington
Post database that
tracks how many people are shot and killed by police.

Lynch's
announcement amplifies a statement by FBI Director James Comey at the
end of September, when
he told a congressional panel that the bureau is in the process of
setting up a database that can track police killings and other use of force during
interactions with the public.

The Justice Department plans to have a pilot program
collecting data in early 2017.

"Accurate and comprehensive data on the use of
force by law enforcement is essential to an informed and productive discussion
about community-police relations," Lynch said. "The initiatives we
are announcing today are vital efforts toward increasing transparency and
building trust between law enforcement and the communities we serve."

Thursday, October 13, 2016

If you follow the news, you may have heard that
there's a bipartisan movement to stop locking up so many Americans, reported Priceonomics.com. The New
York Times recently wrote,
“A bipartisan campaign to reduce mass incarceration has led to enormous
declines in new inmates from big cities, cutting America’s prison population
for the first time since the 1970s.”

It is true that many conservatives and liberals now
agree that America’s world
leading incarceration rate is doing more harm than good. It is also true
that that since 2009, there has been a small decline in the prison population
(see the chart below).

Yet this this national trend belies a larger truth.
In large swaths of the United States, the prison population continues to rise.
Since 2009, about half of
all states have actually increased their prison populations.

The truth is that most of the reduction we've seen
in the national incarceration rate is the result of a lawsuit that
forced the state of California to reduce its prison population in response to
to alleged human rights violations. California’s “decarceration”—which was not
the product of some emerging bipartisan consensus—accounts for the vast
majority of the national reduction.

Though widespread decarceration may be on its way,
it certainly is not happening yet.

Wednesday, October 12, 2016

A total of 10 officers have been killed in
premeditated ambushes so far this year, the same as the last two years
combined, according to the Los Angeles Times.

Police assassins have included a ragtag smattering
of white survivalists, black militants, people who identify with the
antigovernment “sovereign citizen” movement, hard-core criminals who have
clashed with law enforcement for much their lives, and a variety of apparently
suicidal people who wanted to depart with notoriety.

In both of the most recent ambush attacks against
police — in Dallas, where five officers were stalked and killed and nine others
were injured in July, and 10 days later in Baton Rouge, where six officers were
shot, three of them fatally — the killer was African American.

Although most police shooters are white males,
including Latinos, black men have been responsible for nearly 40% of the 232
ambush killings of police officers since 2002, according to a U.S. Department
of Justice study last year.

Tuesday, October 11, 2016

California is among three where voters will make
decisions on capital punishment, reported The Associated Press.

California's ballot initiatives — one would repeal
capital punishment, the other would speed up appeals so convicted murderers are
actually executed — are fueled by those who agree only that the current system
is broken, leaving murder victims' kin grieving and the condemned languishing
on death row.

Meanwhile, voters in Nebraska will be asked whether
they want to reinstate the death penalty and Oklahoma residents will decide
whether to make it harder to abolish it.

In California, more than 900 convicted murderers
have been sent to death row since 1978 — but only 13 have been executed in the
state. Many more have died of natural causes and no one has been put to death
in more than a decade after a judge ordered an overhaul to the state's lethal
injection procedure.

The votes for the three states come amid an
evolution for capital punishment in the U.S.

Executions have mostly been in decline since the
turn of the century and last year reached their lowest level in 25 years, with
28 prisoners killed. Capital punishment has been either legislatively or
judicially repealed in eight states since 2000, according to Robert Dunham,
executive director of the Death Penalty Information Center.

The referendum to repeal California's death penalty
and replace it with life in prison without parole is a repeat of a 2012 ballot
measure that failed 52 percent to 48 percent. Only voters in Arizona and twice
in Oregon have repealed the death penalty and both states later reversed course
to reinstate it.

Proponents of Proposition 62 argue eliminating it
would save California $150 million a year, mostly in reduced legal fees plus
cheaper prison costs since death row inmates who get single cells could be
double-bunked. California's finance director has estimated the proposed reforms
to speed up the death penalty could save the state $30 million annually.

Monday, October 10, 2016

If you wind up in prison in the U.S., your
punishment doesn’t necessarily end the day you serve out your sentence and go
home, according to The Marshall Project. Former inmates reentering society often get ensnared in a web of laws
that dictate their post-prison lives, from where they can live, to what they
can do for
a living, to whether they can ever vote.
In 2014, when the American
Bar Association conducted a national survey of “collateral consequences” —
legal restrictions imposed on people with criminal records — they found 44,500
different state and federal statutes.

In recent years, lawmakers and advocates have
attempted to roll
back some of these policies. Advocates in states including
Massachusetts, Texas and Idaho have waged legal challenges against overzealous
laws dictating where people on the sex-offender registry can live. And an
increasing number of state legislatures have voted to allow former drug
offenders to get food stamps. But thousands of restrictions, many of which
limit job opportunities and access to social services, still remain.

To review a sample of the 44,500 collateral consequences of crime CLICK HERE

Sunday, October 9, 2016

GOP presidential candidate Donald Trump threatened to prosecute and "jail" his opponent Hillary Clinton. Not only does it mirror the dangerous rhetoric of dictators and despots, but by law it is impossible.

As a result of Watergate, in 1977 Congress passed
the Ethics in Government Act (EGA) which for the first time defined procedures
for the appointment of a special prosecutors. Specifically, the Act provided
that upon receiving allegations relating to certain "covered
persons", the Attorney General was required to conduct a preliminary
investigation. If the preliminary investigation suggested that further
investigation was warranted, the AG was required to petition three judge panel
established by the statute and known as the "Special Division," to
appoint an "independent counsel." Several aspects of the Act require
further explanation.

Reminiscent of the most traumatic government upheaval of the
Watergate crisis, according to the Washington Post, In 1973, President Nixon discharged Special Prosecutor
Archibald Cox and accepted the resignations of Attorney General Elliot L.
Richardson and Deputy Attorney General William D. Ruckelshaus, when thet refused to fire Cox. Finally, Robert Bork agreed to fire Cox.

The President also abolished the office of the
special prosecutor and turned over to the Justice Department the entire
responsibility for further investigation and prosecution of suspects and
defendants in Watergate and related cases.

Ohio plans to resume executions in January after a
three-year moratorium due to a shortage of execution drugs, reported the Washington Post.

he Ohio Attorney
General’s office said in court that it plans to use a new three-drug cocktail
to carry out executions. According to the Associated Press, the state said it
plans to use the sedative midazolam, the muscle relaxer rocuronium bromide, and
potassium chloride, which stops a person’s heart.

The attorney general’s office said it plans to file
formal notice of the change later this week. The state will now be able to move
forward with the execution of Ronald Phillips, who was convicted of raping and
killing his girlfriend’s 3-year-old daughter in 1993. There are nearly
two-dozen other inmates on Ohio’s death row.

The switch comes
after executions in Ohio and other states went awry in recent
years. Ohio has not executed anyone since 2014, when witnesses said Dennis
McGuire gasped during his execution, which lasted a half-hour. In Oklahoma,
inmate Clayton Lockett died of a heart attack in April 2014 after authorities
halted an execution that led him to convulse and a vein to burst. In Arizona, the July 2014 execution of convicted
murderer Joseph Wood took more than two hours. Witnesses said Wood struggled to
breathe, but state officials said he was snoring.

States have also struggled to carry out executions
amid shortages of the drugs typically used in executions, forcing them to
find different combinations or explore other options to put people to
death. Both American and European companies have prevented their drugs
from being used in executions in the United States; the latest was Pfizer,
which earlier this year said its drugs cannot be used for executions.

In Ohio,
Gov. John Kasich signed a law in 2014 shielding the identity of companies whose
drugs are used in executions. A federal judge upheld the law in 2015. The Supreme Court ruled last year that Oklahoma’s
protocol for executing prisoners, which included midazolam, did not lead to an
unconstitutional amount of suffering.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.